Court of Appeal for Ontario
Date: 2025-07-09
Docket: COA-23-CR-0661
Coram: Tulloch C.J.O., Dawe and Pomerance JJ.A.
Between:
His Majesty the King (Respondent)
and
Aris Saha (Appellant)
Appearances:
Gregory Lafontaine, for the appellant
Lilly Gates, for the respondent
Heard: 2025-06-30
On appeal from the conviction entered on February 23, 2023 and the sentence imposed on June 28, 2023 by Justice Ann Alder of the Ontario Court of Justice.
Reasons for Decision
Introduction
1The appellant appeals his conviction for sexual assault, and also appeals against his 12-month custodial sentence.
Background
2The appellant and the complainant met in the Byward Market neighbourhood of Ottawa. She had been out drinking with her cousin, and he was with a friend. After a brief conversation, the complainant and her cousin agreed to accompany the appellant and his friend back to their hotel.
3At the hotel, the appellant and the complainant went into a bedroom together. They gave conflicting evidence about what happened next. According to the complainant, the appellant forcibly had intercourse with her without her consent. According to the appellant, the sex was consensual.
4The appellant and the complainant both agreed that at different points the appellant put his hand on the complainant’s neck, scratched the complainant’s back, and hit her buttocks, although they gave divergent evidence about the circumstances in which these things happened. The appellant testified that he performed these acts after the complainant told him that she “like[d] it rough”. She denied saying this.
5The complainant and her cousin then left the hotel. The complainant was crying and upset. She called her mother, who came to pick them up and took the complainant to the hospital.
Trial Judge’s Findings
6The trial judge found that although the complainant was very intoxicated, she still had the capacity to consent to sex. She also noted that the appellant was not relying on the defence of honest but mistaken belief in communicated consent, and that the only contested issue was whether the complainant consented in her own mind to the sexual activity.
7The trial judge was not satisfied beyond a reasonable doubt that the complainant did not consent to the initial sexual activity, including intercourse, in part because she had made prior inconsistent statements bearing on this issue. However, she accepted the complainant’s testimony that she did not subjectively consent to the appellant putting his hand on her neck, scratching her back, or slapping her buttocks while they had intercourse. The trial judge did not accept the appellant’s testimony or find that it raised a reasonable doubt, explaining:
Even if I accept or am left in a doubt that [the complainant] actually did say, “I like it rough”, that does not mean she was consenting to any of the activities that followed in these circumstances. On its own, it does not create [a] circumstance where her subjective non-consent would be not credible or would leave me with a reasonable doubt.
Grounds of Appeal
8The appellant argues that if the trial judge did not entirely reject the appellant’s testimony that the complainant had requested “rough sex”, she erred by not treating the complainant’s words as meant to convey her consent to the appellant’s subsequent actions, which were all “acts that traditionally comprise rough sex”.
Analysis
9We do not agree, for several reasons. First, “[f]or the purposes of the actus reus, ‘consent’ means that the complainant in her mind wanted the sexual touching to take place.” (R. v. Ewanchuk, para 48; R. v. Barton, 2019 SCC 33, para 89). When considering whether this element of the offence had been established, the trial judge was entitled to accept some, all or none of the complainant’s testimony about her own subjective thoughts. Any words the complainant may have spoken to the appellant were relevant to this question, but were not determinative.
10Second, the trial judge was entitled to conclude that even if the complainant said to the appellant that she “like[d] it rough”, she did not mean to express consent to the specific acts the appellant then performed on her. “Rough sex” is an ambiguous and ill-defined term that may mean different things to different people, particularly when the parties to the sexual activity are relative strangers: see R. v. A.E., 2021 ABCA 172, paras 32-35, per Martin J.A., at para. 152 per Pentelechuk J.A., concurring; aff’d 2022 SCC 4. The trial judge was entitled to conclude that the complainant subjectively meant “rough” sex to mean something different than the acts performed, or was expressing a general preference rather than specific consent to participating in “rough sex” at that moment.
11Third, the trial judge was entitled to conclude from the evidence of the complainant’s demeanour after she left the hotel that something had happened to which she had not subjectively consented. Citing this court’s decision in R. v. A.J.K., 2022 ONCA 487, para 43, the trial judge found that the complainant “was emotionally devastated when she left that room”, and drew the inference:
[T]hat she was emotionally devastated because something emotionally devastating happened to her, not because she consented to having sex with a stranger, rather because she did not subjectively consent to that activity.
12Fourth, while the trial judge noted that the appellant was not raising the defence of honest but mistaken belief in consent, her reasons explain why she was also satisfied that the Crown had proved the required mens rea: namely, that the appellant knew, or was wilfully blind or reckless to, the lack of communicated consent by the complainant (Ewanchuk, para 42; Barton, paras 87-90). In this regard, the trial judge was entitled to take into account the appellant’s own evidence that he stopped putting his hand on the complainant’s neck because he was not sure she was consenting to this. She noted:
Mr. Saha himself said he pulled his hand away from her neck after five seconds because he thought, “What am I doing, I do not know this woman.” That comment, “I like it rough”, even if said, is not and cannot permit an inference that there had been communicated consent to what followed.
13The trial judge also held:
While not argued, I simply wish to point out that had there been a defence of honest but mistaken belief in communicated consent on the evidence before me, I would not have a reasonable doubt in regards to the mens rea issue.
14The appellant also argues that the trial judge erred by stating that his own testimony, explaining why he took his hand off the complainant’s neck, “corroborates [the complainant’s] evidence of no consent”. The Crown concedes that it was not literally correct for the trial judge to refer to this evidence as “corroborative”, and we agree. Since the actus reus analysis is only concerned with the complainant’s subjective thoughts, the appellant’s evidence about what he believed the complainant was thinking was not capable of either contradicting or corroborating her evidence that she was not consenting in her own mind (Ewanchuk, para 30; Barton, para 89).
15However, we are satisfied by the trial judge’s reasons as a whole that she did not actually misuse the appellant’s testimony. She was entitled to conclude that since the appellant acknowledged that he was himself not sure exactly what the complainant meant when she said that she “like[d] it rough”, these words did not contradict the complainant’s own evidence that she had not subjectively consented to being choked, scratched, or slapped. The trial judge was also entitled to consider the appellant’s testimony when deciding whether the evidence established that he had the requisite mens rea.
Disposition of Conviction Appeal
16We would accordingly dismiss the conviction appeal.
Sentence Appeal
17Turning to the sentence appeal, the appellant submits that the trial judge erred by finding that a carceral sentence was required in this case. He also argues that the trial judge erred by stating in her reasons for sentence that “there is little or no evidence about Mr. Saha, other than the biographical data he testified to at trial.”
18Dealing with this second argument first, we are satisfied that the trial judge’s comment was fair and accurate. The appellant had testified about his educational and work history, and had added a few further details, such as his being a part-owner of a dog and enjoying travel. The trial judge was entitled to find that this sparse evidence left her with an incomplete understanding of the appellant’s personality and character, and that it would have been better if she had known more about him.
19We are also not satisfied that the trial judge made any reversible errors in deciding that the particular circumstances of this case required a jail sentence. She properly instructed herself that a conditional sentence was an available sentencing option, and quoted at length from the Supreme Court of Canada’s decision in R. v. Proulx, 2000 SCC 5. However, she decided that on balance, the applicable factors and sentencing objectives in this case favoured incarceration rather than house arrest. This was a discretionary judgment call that is entitled to appellate deference: see Proulx, paras 116, 123-26. Moreover, the 12-month sentence she imposed was not demonstrably unfit: R. v. Lacasse, 2015 SCC 64, para 11.
20Accordingly, while leave to appeal sentence is granted, the sentence appeal is dismissed.
“M. Tulloch C.J.O.”
“J. Dawe J.A.”
“R. Pomerance J.A.”
Publication Ban
1This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, RSC 1985, c C-46.